Criminal law supervision 2: Mens Rea

1. The mental states of intent and recklessness have in common the

need to prove foresight of the prohibited consequence. For either
form of culpability the defendant chooses to bring about the
consequences of his conduct. That being so there seems little
point in retaining both these forms of culpability. For serious
crimes the culpability required should be recklessness.
Discuss

For serious crimes, there usually is a mens rea therefore just looking at
recklessness would not be looking at the full picture. Sometimes serious
crimes do not fully involve recklessness and are based completely on
intention to carry out a serious crime.
It is not always the case that the defendant chooses to bring about the
consequences of his actions, sometimes due to recklessness; those
consequences come about and were not necessarily thought of by the
defendant before. Eg. In R v Hyam [1975] Mrs. Hyam claims that she did
not forsee the consequences and was just being reckless although the
court dismisses her appeal.

R v Hyam [1975]

Mrs. Hyam had been having an affair with somebody who left her and
started having an affair with someone else. She was not pleased so she
poured petrol through the letterbox of her rival. There were people inside
the house sleeping and she ignites the petrol. Consequently someone in
the house dies. She is convicted for murder, and she appeals that she
didnt have the state of mind for intention, she had not intended to kill
anybody through her actions, she hadnt even intended to cause anyone
harm, she was just being reckless. HL dismissed her appeal because her
foresight of the death was highly probable and that was all she had to see.

This shows your foresight does not have to be to a critical extent,

just to a highly probably extent.
-

R v Moloney [1985]

There was a father and his stepson and they had both been drinking
heavily. The father had guns in the household. In their drunken game they
failed to see that the safety hatch isnt on and the son ends up shooting
the father dead. He is on trial for murder; the jury says that son should
see that that result was highly probable. HL allowed his appeal and
quashed his conviction for murder and substituted a manslaughter
conviction. This overturned the Hyam conviction, and said that if you left it
at being highly probable, many people would be on trial for murder. You
have to foresee the consequence as a natural consequence.

R v Hancock and Shankland [1986]

These were 2 guys who were miners and during the strike they were
trying to stop their colleagues from going to work so they stand on a
motorway bridge and throw boulders onto the road, one falls on a taxi
which kills the driver. They are convicted for murder, they appeal to CA.
They argued that it wasnt their plan to kill anybody; court agreed that
there was no direct intention, was there oblique intention? The CA allowed
the miners appeal, and quashed the conviction for murder and
substituted manslaughter. The Crown appeals the case to the HL, they
dismiss the crowns appeal and uphold manslaughter conviction.
-

R v Nedrick [1986]

Very important case as this is the case where they start talking about
virtual certainty.
The defendant, Nedrick has a grudge against the victim and pours lighter
fuel in the letterbox of this persons house and sets it alight and the house
burns down and the victim dies as a result. At trial Nedrick is convicted of
murder, but the jury felt that Nedrick should have seen that as a result of
his actions, death was highly probable. This is a CA case; Nedrick appeals
and CA quash murder and substitute manslaughter. Judge comes up with
virtual certainty and gets rid of probability. If the defendant foresees the
consequence to be virtually certain, then that could be enough for the
defendant to be inferred of intention.
2. Critically evaluate the test for intention set out in Woollin.

Ought intention be equated with foresight of virtual

certainty?
-

R v Woollin [1998]

The father lost his temper with his 3 month old son, he threw his son
against a wall, which fractured his skull and the baby dies. He is charged
with murder, at trial the judge explained to the jury that you should
convict Woollin if he foresaw the consequences and can then infer
intention. He also says, it not just about foresight of virtual certainty that
is important but you can also convict him if you say he appreciated there
was a substantial risk that through his actions the baby would die or be
seriously harmed. He was convicted for murder, he appealed, CA
dismissed it, appeals again to the HL, the HL say that the trial judge had
been wrong to depart from the virtual certainty and so allow his appeal
because the judge had blurred the distinction between murder and
manslaughter. Quashed murder conviction and upheld manslaughter. As
nedrick was only a CA case, it could be used by jurys, so in this case of

Woollin, Lord Steyn copies the judgment from Nedrick to this case so as to
approve of it in HL except changes the word infer to find.
There is a 2 part test that comes from the Woollin case.
-

Was the death or serious harm virtually certain as a result of the

defendants actions?

Are the jury sure that the defendant appreciated that the
consequences were virtually certain?

This judgement is now open to 2 interpretations;

-

Definitional interpretation

When Steyn changed the word, it actually made a difference. If you find
intention, then it amounts to intention itself. Under this definition they
have no choice but to find someone liable if there in intention. The change
takes away the jurys discretion, if they can find virtual certainty it
amounts to intention.
-

Evidential interpretation

This approach is for people who say that the change has not made much
of a difference, this definition puts weight on the word entitled the jury
are entitled (but not required) to find the intention and therefore leaves
the discretion that even if there is virtual certainty, they can find intention
or not.
Re A (conjoined twins: surgical serparation) [2000]
Conjoined twins where the hospital and the doctors wanted to find out
from criminal law if they separated the twins, would it amount to murder
because it would be certain that the weaker twin would die as a result.
The doctors would not be guilty of murder if they separated the twins. A
couple of the judges followed a definitional approach to Woollin, where
they said that if it was a virtually certainty that the operation would result
in the death of one of the twins, then there is an intention to kill. One of
the judges said post woollin you can look at intention from an evidential
approach, foresight of virtual certainty means that you can find intention
but you are equally entitled not to find intention and in this case they
didnt find intention. This was however CA and we are waiting for a HL
case.
R v Matthews and Alleyne [2003]

The defendants had deliberately thrown a person that they knew couldnt
swim into the river and he dies as a result. They are convicted to murder
and the appeal, but the CA dismisses this and upheld murder.
-

The test can be criticised as intention should not be equated with

foresight of virtual certainty because it is not necessary that the
defendant intended to do harm and foresaw the consequences.
The test does not really look at any intention on behalf of the
defendant.
If the defendant appreciated the consequences were virtually certain,
then the intention was obviously there.
Not looking at intention, the test is good at determining the defendants
view of the virtually certain.

3. In spite of all the critiques that have been made of it, Caldwell
recklessness had an important point to make, not caring in
culpable. Discuss
Caldwell recklessness has now been abolished. However it is useful to know in outline what
it was and why the HL decided to abolish it.
Defendants were Caldwell reckless if
(i)
(ii)

they are aware of a risk OR

there was an obvious and serious risk AND they failed to consider whether or not
there was a risk

Caldwell recklessness includes defendants who were not aware of an obvious risk. Caldwell
recklessness fell into disrepute because it punished defendants for failing to notice a risk
which would have been obvious to a reasonable person.
The issue was considered in Elliot v C (1983), where a 14 year old girl with learning
difficulties set fire to a shed by lighting white spirit. The court stated that Lord Diplock in
Caldwell had made it clear that the test was whether a reasonable person would have realised
that the lighting of the spirit would create a risk of damage to the shed, not whether the risk
was obvious to the defendant or obvious to a reasonable person of the defendants age and
mental abilities. As she had failed to consider the risk and it would have been obvious to a
reasonable person, she was guilty of criminal damage. The decision caused an outcry
amongst academic commentators. Had they been tabloid writers it would have been given
the title the most hated case in Britain. The reason for the outrage is this: it can lead to the
punishment of a defendant who fails to appreciate a risk that she was incapable of
foreseeing. C was liable for failing to foresee a risk that because of her mental condition she
may have been incapable of foreseeing. The harshness of this approach is revealed by the
following example: a blind person is walking down the pavement and walks into a bicycle left
lying on the pavement, damaging it. As the risk would be obvious to an ordinary sighted
person he would be Caldwell reckless as he failed to foresee the risk. This is extraordinary.
With this in mind it was not surprising that the HL in G and R decided that Caldwell
recklessness had to go.

Caldwell recklessness had many critics. The decision enraged some commentators so much
that ordinary standards of etiquette when commentating on judicial decisions were put
aside, with Professor Smith calling Lord Diplocks reasoning in the case pathetically
inadequate. One particular ground of criticism is based around the decisions in Elliot v C
(1983) and Coles (1995). By convicting these defendants on the basis of failing to see a risk
which would have been obvious to a reasonable person (even if it would not have been
obvious to a reasonable person of those defendants mental abilities), they are said to go
against fundamental principles of justice. Even accepting the moral thrust of Caldwell
recklessness (we blame the defendant for failing to see a risk which he should have seen)
such an argument is legitimate only where the defendant could have foreseen the risk. To
punish someone for failing to do something he or she was incapable of doing seems
manifestly unjust. It is hard to mount a defence of the reasoning in these cases except on the
basis that it is more important to protect victims from harm from others than to achieve
justice in every case.
Although there is hardly a consensus amongst commentators, it seems that a majority would
accept that Cunningham recklessness is too narrow, while Caldwell recklessness is too wide.
Is there a middle way between the two forms? Some commentators have suggested that the
decision in the HL in Reid (1992) hinted at one. If the defendant has a good reason (e.g. a
sudden emergency) he is not reckless. But if he does not have a good reason (e.g. he is angry)
then he is reckless.
4. Jim, a member of the anti-government militia sets two time
bombs in a department store. He phones the store half an hour
before the bombs are supposed to go off and tells them to clear
the building, but not to send in any bomb disposal experts as the
bombs will go off when touched. The first bomb, owing to a
malfunction goes off 3 minutes after the phone call, killing three
shoppers. The shop is cleared of people, and 15 minutes later, a
bomb disposal expert, Edward is sent in, but when he touches it,
it goes off, killing him. Jim decides that Sam, another member is
in fact a police informer. Therefore he orders David to break both
his legs and force him into a meeting of the militia show what
happened to traitors to the cause David breaks Sams legs and
whilst forcing him towards the meeting room, Sam dies of shock.
Does Jim intend the deaths? Is he reckless towards them?
-

It could be argued that Jim did not intend the deaths of the 3 shoppers
and Edward as he called the store and asked them to evacuate and
also warned not to touch the bomb. However, it could be seen that
placing the bombs in the department store is with the intention to kill
or cause serious damage. By designing the bomb to detonate once it is
touched is with the intention to kill the person who touched it.
Sams legs are broken on the order or Jim, although he did not intend to
kill Sam, he intended gross bodily harm which could have resulted in
death and this is a foreseeable circumstance especially as Sam is
forced to walk.

Jim is extremely reckless towards all four deaths, and although they do
not involve direct intention, it could be argued that they all involve
indirect/oblique intention, however direct intention could be argued
too, as placing the bombs in the store and breaking Sams legs involve
a pre mediated plan. Taking the subjective recklessness view, it could
be seen that Sam was aware of the risk and then took the conscious
decision to place the bombs there and break Sams legs despite the
risk involved.

Cases:

These are subjective cases:

R v Cunningham [1957] (very authoritative case)
Cunningham was a squatter and he went into an unoccupied house where
he was staying which had a coin operated gas meter. He tried to get the
money out of it and the gas started leaking out and made a neighbour
was really ill. He was charged with maliciously administrating obnoxious
substance. The judge said malicious meant wickedness, at trail he was
convicted of this offence and went on to appeal to CA that this
terminology was old fashioned. CA said the malicious meant you could
mean intentionally or recklessly. So quashed the decision?
R v Stephenson [1979]
Was a tramp and he suffers from schizophrenia. He finds himself in the
countryside and finds refuge in someones barn. He has a lighter on him
and starts a fire to warm and the barn ends up burning down. At trial he is
convicted of arson because the trial judge told the jury you have to
convict him if he closed his mind to an obvious risk. He appeals his
conviction and goes to the CA, they allow this and quash his conviction
and they so do because the trial judge misdirected the jury because he
applied an objective approach to recklessness.
Objective recklessness cases;
R v Caldwell [1982]
Caldwell had done some work fo a hotel owner and he goes and had some
drink at the hotel and gets in a fight with him. Caldwell gets into a temper
and sets fire to the hotel as revenge. Caldwell is convicted with
arson/criminal damage pleaded guilty. The second charge he is
convicted with is recklessly/intentionally endangering life and he disputed
this charge. At his trial he is convicted of the second charge. The trail
judge said drunkenness is not an excuse. HL looked at 2 things,
intoxication,...crown appealed... this was seen as a basic intent offence so

his drunkenness could not be used as a defence, court said because it is a

basic intent offence, if you get so drunk you have no idea what you are
doing then you are acting in a reckless manner.
Specific intent eg. Murder, because only intention suffices. A crime of
specific intent, the only form of mens rea that is required in intention. For
crimes of specific intent, drunkenness can work as a defence.
Basic intent all other offences, which can be committed recklessly by
any other mens rea except intention. Drunkenness is never going to be a
defence for a basic intent crime.
Elliot v C [1983]
There was a girl who was lower levels of intelligence, maturity for a 14
year old. She fought with her parents, and she sets fire to the next door
neighbours shed. She said she didnt realise the consequences of what
would happen. She was convicted at trial because of caldwells approach
to recklessness. The court reaffirmed that when you are looking at
criminal damage, you take an objective approach. For the next 20 years,
court always looked at recklessness is an objective approach
Caldwells approach can be seen as quite harsh and over inclusive.
Subjective recklessness could be criticised as being under inclusive.
R v G [2003]
The case involved criminal damage. 2 boys, 11 and 12 years who set fire
to newspapers in a wheelie bin near a supermarket and it catches fire to
the building and the supermarket suffer losses of over 1 million. They are
convicted of arson/criminal damage, they appeal on the fact that they
didnt understand the full consequences of the risk they were taking.
Appeal is dismissed because they took the Caldwell approach. HL decided
to quash the boys conviction to arson and allow their appeal, and
reinstate a subjective view for recklessness.
They wanted to bring the subjective approach back because the objective
approach leads to unfair decisions. Conviction for serious crime should
depend on proof of culpable state of mind of the defendant.